This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2011AP1432

Cir. Ct. No.2011CV1404

STATE OF WISCONSIN

IN COURT OF
APPEALS

DISTRICT IV

City of Madison,

Plaintiff-Respondent,

v.

Timothy S. Smith,

Defendant-Appellant.

APPEAL
from an order of the circuit court for Dane County:stephen
e. ehlke, Judge.Reversed.

¶1HIGGINBOTHAM, J.[1] Timothy
S. Smith, pro se, appeals an order dismissing an appeal of a municipal court
decision pursuant to Wis. Stat. § 805.03
for failure to timely prosecute and failure to comply with the requirements for
appealing a municipal court decision as set forth in Wis. Stat. § 800.14.For the reasons we explain below, we conclude that the circuit court
erroneously exercised its discretion in dismissing the appeal.Accordingly, we reverse and remand to the
circuit court for further proceedings.

BACKGROUND

¶2On July 22, 2010, the Madison Municipal Court found Smith
guilty of speeding and imposed a fine of $114 or eleven hours of community
service.It is undisputed that Smith
submitted a timely notice of appeal. The
notice of appeal listed three different types of appeal from which Smith could
choose. Smith chose the first option,
which provides, in relevant part:

An appeal to circuit court without a new trial.The circuit court judge will review a
transcript of the tape recorded trial and exhibits.Fees are payable as follows:$10 to Madison Municipal Court and $129.50 to
Dane County Circuit Court.

¶3Smith also submitted an affidavit to the municipal court, in
which he stated that he had been unemployed since November 2008 and that he had
“no money to defray the costs of the underlying appeal or transcript costs.” The municipal court sent the municipal court
record to the circuit court, with a form indicating that Smith requested a
waiver of fees.In December 2010, Smith
contacted the circuit court to inquire about the status of his appeal. Smith was informed that the circuit court
never received a completed waiver of fee form and therefore did not accept his
appeal. Smith subsequently petitioned
the circuit court for waiver of the appeal fee.The court granted the petition.

¶4In April 2011, the court held a status conference.At the status conference, the City moved to
dismiss pursuant to Wis. Stat. § 805.03
on the grounds that Smith failed to prosecute in a timely manner and failed to
comply with the procedural requirements for appealing the municipal court
decision under Wis. Stat. § 800.14.
The court granted the City’s motion and
dismissed the appeal with prejudice.Smith appeals.

¶6Based on our reading of Smith’s brief-in-chief, we understand
him to be arguing that the court erroneously exercised its discretion in
dismissing the appeal because Smith did not receive notice of the City’s motion
to dismiss. The City responds that it was not required to provide Smith with
notice of the motion to dismiss because, pursuant to Wis. Stat. § 802.01(2)(a), a motion need not be made in
writing when made during a hearing.

¶7Whether a court may dismiss a case for failure to prosecute
in the absence of notice was addressed in Neylan v. Vorwald, 124 Wis. 2d
85, 90, 368 N.W.2d 648 (1985).The court
determined that, because Wis. Stat. § 805.03
by its language does not provide constructive notice as to what is expected of
litigants to avoid dismissal for failure to timely prosecute, actual notice to
the parties is required.Id. at
90-93; see also Theis v. Short, 2010 WI App 108, ¶23, 328 Wis. 2d 162, 789
N.W.2d 585 (concluding that where a party had “no actual or constructive notice
that [the party’s] conduct might result in dismissal before [the opposing
party] filed his motion to dismiss for failure to prosecute, dismissal violated
due process requirements”).

¶8Here, the City does not dispute that Smith was not provided
actual notice of the City’s motion to dismiss for failure to prosecute prior to
the status conference.Because Smith was
not provided with actual notice that his conduct might result in dismissal, we
conclude that the court erroneously exercised its discretion in dismissing the
appeal for failure to prosecute.

¶9While a court may not dismiss an action for failure to
prosecute without the parties having actual notice, a court may dismiss an
action for failure to comply with procedural statutes without the parties
having actual notice.SeeNeylan, 124 Wis. 2d at 93.This is because the conduct that violates a
statute is “precise and ascertainable.”Id.Thus, Wis.
Stat. § 805.03 provides constructive notice to litigants of the
actions a court may take for failure to comply with procedural statutes, and
therefore actual notice is not required.

¶10Accordingly, the question turns to whether the court erred in
dismissing Smith’s appeal on the ground that he violated the procedures for
appealing a municipal court decision as set forth in Wis. Stat. § 800.14.Pursuant to Wis. Stat. § 800.14(1),
an appellant must appeal a municipal court decision within twenty days of the
decision “by giving the municipal judge and other party written notice of
appeal.”There is no dispute that Smith
complied with this requirement.Additionally, Wis. Stat. § 800.14(5)
provides, in relevant part:

An appellant shall, within 20 days after notice of
appeal, submit payment of the estimated cost of the transcript, as determined
by the municipal court, but shall be responsible for the actual cost of
preparing the transcript. A defendant claiming an inability to pay with regard
to the bond or the transcript fee may petition the municipal court for a
waiver. A defendant claiming an inability to pay with regard to the appeal fee
or jury fee may petition the circuit court for a waiver.

¶11Smith appears to contend that he complied with Wis. Stat. § 800.14(5) by
submitting an affidavit, seeking a waiver of the appeal and transcript
fees.Smith acknowledges that he did not
petition the circuit court for a waiver of the appeal fee until after he
contacted the court in December 2010.However, Smith points out, the court granted his petition.

¶12We conclude that the circuit court erroneously exercised its
discretion because it improperly applied the law when it determined that Smith
failed to comply with Wis. Stat. § 800.14.Under Wis.
Stat. § 800.14(5), Smith was required, within twenty days after
notice of appeal, to pay the estimated cost of the transcript, or,
alternatively, petition the municipal court for a waiver.Smith satisfied this requirement by
petitioning the municipal court for a waiver of the transcript fee within the
statutory time limit.[3]In addition, Smith was required to pay the
appeal fee or petition the circuit court for waiver of the appeal fee.Although Smith did not at first comply with
this requirement, he ultimately submitted a waiver of the appeal fee, which the
circuit court granted.Accordingly,
there are no requirements under Wis.
Stat. § 800.14 that Smith failed to meet.Therefore, we conclude that the circuit court
erroneously exercised its discretion in dismissing the appeal on the ground
that Smith failed to comply with Wis.
Stat. § 800.14.

¶13Because the circuit court erroneously exercised its discretion
in dismissing Smith’s appeal, we reverse and remand this case to the circuit
court for further proceedings.

By the Court.—Order reversed.

This opinion will not be published.SeeWis. Stat. Rule 809.23(1)(b)4.

[1] This
appeal is decided by one judge pursuant to Wis.
Stat. § 752.31(2) (2009-10).All references to the Wisconsin Statutes are to the 2009-10 version
unless otherwise noted.

[2]
Smith raises other arguments on appeal, several of which relate to the
municipal court’s underlying decision. We do not address Smith’s other arguments
because they are not properly before this court.

[3] We
note that the City is correct that the circuit court properly denied Smith’s
request for waiver of the $10 transcript fee because the court lacked the
statutory authority to grant the request.However, the City is incorrect that Smith’s correspondence to this court
during the pendency of this appeal, stating that he paid the $10 transcript fee
to the municipal court, demonstrates that he “in fact, had the ability to
gather the necessary $10 [transcript fee].” We cannot conclude that the fact that Smith
appears to have paid the transcript fee now demonstrates that Smith was able to
pay the transcript fee at the time he submitted his affidavit.